Saturday, June 20, 2015

Gun Control: The Public Health and Rational Basis Review

The Public Health and Rational Basis Review of Gun Control

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
-Antonin Scalia writing for the majority in Heller v. District of Columbia

Every country has hateful or mentally unstable people. What’s different is that not every country is awash with easily accessible guns. So I refuse to act as if this is the new normal. Or to pretend that it is sufficient to grieve, or as if any attempt to act is politicizing the problem.
- Barack Obama, June 19, 2015 - speaking after the  Emanuel AME Church massacre

The Supreme Court - finding for the first time a personal right to bear arms - in Heller v. D.C. (2008)  left unsaid what disqualifies a person to obtain a license to carry a gun “in the home”.  As a nation  we are divided tribally.  One deplores the nation’s huge arsenal of privately held guns as the source of the 100,00 shootings and 30,000 deaths we suffer in a typical year.  President Obama is in that camp.  Another tribe embraces the right of possession because “[s]elf defense is a basic right...the central component of the Second Amendment’s guarantee of an individual’s right to keep and bear arms”, as Justice Clarence Thomas wrote recently dissenting in Jackson v. San Francisco.

No one disputes that the unlawful use of guns is a grave problem that stains our country.  But without recantation by the Supreme Court can these two polar views ever be reconciled?  If so there must be a way for the law to express it.  Embedded in the Second Amendment’s “well regulated militia” is the undisputed power of government  to license weapons.  The battle must be fought over what constitutes proper regulation since compulsory disarmament has now been taken off the menu in Heller.

Despite the recurrent mass killings, and the less noticed everyday homicides and suicides Congress has refused to enact new gun control measures.  Some states have acted.  Washington State  voters in Initiative 594 enacted universal background checks by referendum; while Texas has expanded rights to carry arms even to college campuses.  New York and Connecticut have enacted new controls.  In New Jersey N.J.S. 2C:58-3 (c)(5) provides that a permit may be denied “[t]o any person where the issuance would not be in the interest of the public health, safety or welfare … ."  In two recent decisions panels of the Appellate Division have relied on the public health, safety, and welfare  provision to deny permits.
In Appeal of the Denial of the Application of Z.L. the Appellate Division of the Superior Court of New Jersey recently upheld the discretionary denial of applications for three handgun permits to a man whose temper had led to several 911 calls by his wife.  Though he was not found guilty of domestic violence (a statutory disqualifier) the local police chief denied the permits citing “the public health, safety or welfare”.

In Appeal of the Denial of Applications of J.H. a panel upheld the denial of four permits sought by J.H. not because of his conduct but because his wife was disqualified due to prior CDS convictions and because she had on at least one occasion lost her temper and struck the applicant.  His wife’s presence in the house, the police concluded, outweighed the blameless applicant’s statutory right to own guns.

These two decisions wisely upheld the discretionary denial of gun permits.  Across the country courts have generally found a way to uphold state gun control measures, but as we have noted the standard of review remains unspecified by the highest court.  Justice Thomas laments that “lower courts, including the ones here, have failed to protect [the right]. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document” he would have granted review even absent a conflict among the Circuit Courts of Appeals.

Justice Thomas has misconstrued rights jurisprudence and slighted governmental authority to protect the public welfare.  Not all constitutional rights are created equal.  Some are more equal than others.   Therefore the degree of scrutiny courts may impose varies.  Searches must be reasonable.  Abortion restrictions must respect the privacy of the patient-physician relationship.  The right to counsel at government expense extends only to serious punishments.  The process due to a right holder varies with circumstances. For some government - before it acts -  must afford notice and an opportunity to be heard as in welfare entitlements under Goldberg v. Kelly (1969).  But more broadly as Matthews v. Eldridge (1976) explained the process due is a function of “1] the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

In free speech cases “strict scrutiny” has prevailed; in gender discrimination or professional regulation some intermediate standard is seen; and in review of most state criminal laws the deferential “rational basis” review has prevailed.   In our view the dangers of gun possession are so great that neither strict scrutiny nor some intermediate review is warranted.   Recreational and hypothetical need for self-defense claims should be subject to a different level of review: strict scrutiny of the applicant’s need and the highest regard for the compelling need to reduce the incidence of gun violence.

When viewing the public interest in avoiding unlawful violence and weighing it against the right of the person who seeks to license a gun it appears clear that neither strict scrutiny nor intermediate review is warranted. The public health and safety is a compelling interest - even the fundamental purpose of government.  When rights are in conflict - the public health and the individual’s hypothetical need to defend himself - the discretionary authority of public health and safety offices should be at its broadest.  The Appellate Division decisions in J.H. and Z.L.  should be endorsed.  And because the dreadful has become awfully familiar it is important for the state's Supreme Court to take the opportunity to affirm that the broad statutory discretion our police possess is constitutionally well grounded.


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